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This is a Bill, not an Act. For current law, see the Acts databases.
2013-2014
The Parliament of the
Commonwealth of Australia
THE SENATE
Presented and read a first time
Civil Law and Justice Legislation
Amendment Bill 2014
No. , 2014
(Attorney-General)
A Bill for an Act to amend various Acts relating to
law and justice, and for related purposes
No. , 2014
Civil Law and Justice Legislation Amendment Bill 2014
i
Contents
1
Short title ........................................................................................... 1
2
Commencement ................................................................................. 1
3
Schedules ........................................................................................... 2
Schedule 1--Bankruptcy
3
Bankruptcy Act 1966
3
Schedule 2--International arbitration
7
International Arbitration Act 1974
7
Schedule 3--Family law
8
Family Law Act 1975
8
Schedule 4--Court security
9
Court Security Act 2013
9
Family Law Act 1975
11
Schedule 5--Evidence
13
Part 1--Privilege in respect of self-incrimination
13
Evidence Act 1995
13
Part 2--Application to the Australian Capital Territory
14
Evidence Act 1995
14
Part 3--Differences from Evidence Acts of other jurisdictions
16
Evidence Act 1995
16
Part 4--Other amendments
20
Evidence Act 1995
20
Part 5--Application of amendments
21
Schedule 6--Protection of movable cultural heritage
22
Protection of Movable Cultural Heritage Act 1986
22
Schedule 7--National Library material
23
Copyright Act 1968
23
No. , 2014
Civil Law and Justice Legislation Amendment Bill 2014
1
A Bill for an Act to amend various Acts relating to
1
law and justice, and for related purposes
2
The Parliament of Australia enacts:
3
1 Short title
4
This Act may be cited as the Civil Law and Justice Legislation
5
Amendment Act 2014.
6
2 Commencement
7
(1) Each provision of this Act specified in column 1 of the table
8
commences, or is taken to have commenced, in accordance with
9
column 2 of the table. Any other statement in column 2 has effect
10
according to its terms.
11
12
2
Civil Law and Justice Legislation Amendment Bill 2014
No. , 2014
Commencement information
Column 1
Column 2
Column 3
Provisions
Commencement
Date/Details
1. Sections 1 to 3
and anything in
this Act not
elsewhere covered
by this table
The day this Act receives the Royal Assent.
2. Schedules 1 to
6
The day after this Act receives the Royal
Assent.
3. Schedule 7
The day after the end of the period of 6
months beginning on the day this Act
receives the Royal Assent.
Note:
This table relates only to the provisions of this Act as originally
1
enacted. It will not be amended to deal with any later amendments of
2
this Act.
3
(2) Any information in column 3 of the table is not part of this Act.
4
Information may be inserted in this column, or information in it
5
may be edited, in any published version of this Act.
6
3 Schedules
7
Legislation that is specified in a Schedule to this Act is amended or
8
repealed as set out in the applicable items in the Schedule
9
concerned, and any other item in a Schedule to this Act has effect
10
according to its terms.
11
Bankruptcy Schedule 1
No. , 2014
Civil Law and Justice Legislation Amendment Bill 2014
3
Schedule 1
--Bankruptcy
1
2
Bankruptcy Act 1966
3
1 Before subsection 18(1)
4
Insert:
5
Corporate status of Official Trustee
6
2 After subsection 18(2)
7
Insert:
8
Extra function of Official Trustee
9
(3) The functions of the Official Trustee include acting in accordance
10
with an order of a court relating to the payment of a debt due by a
11
person to the Commonwealth or a Commonwealth authority.
12
Example: Such an order may, for example, provide for the Official Trustee to:
13
(a) take custody of, control and own property as security for
14
payment of such a debt; and
15
(b) sell the property; and
16
(c) apply the proceeds of the sale wholly or partly towards the
17
payment of the debt.
18
Note:
Other provisions of this Act and other laws of the Commonwealth
19
confer other functions on the Official Trustee.
20
Official Trustee's seals
21
3 Before subsection 18(8)
22
Insert:
23
Official Receiver acting for Official Trustee
24
4 Before subsection 18(8B)
25
Insert:
26
Schedule 1 Bankruptcy
4
Civil Law and Justice Legislation Amendment Bill 2014
No. , 2014
Inspector-General acting for Official Trustee
1
5 Before subsection 18(9)
2
Insert:
3
State of mind of Official Trustee
4
6 Before subsection 18(11)
5
Insert:
6
General interpretation provisions
7
7 Before paragraph 20B(8)(a)
8
Insert:
9
(aa) acting in accordance with an order of a court relating to the
10
payment of a debt due by a person to the Commonwealth or a
11
Commonwealth authority; or
12
8 At the end of section 27
13
Add:
14
(2) To avoid doubt, subsection (1) does not:
15
(a) confer jurisdiction in a criminal matter; or
16
(b) exclude the jurisdiction of a court of a State or Territory
17
under the Judiciary Act 1903 in a criminal matter relating to
18
this Act.
19
9 Subsection 77C(1)
20
Omit "both" (first occurring), substitute "more".
21
10 After paragraph 77C(1)(b)
22
Insert:
23
; (c) produce all books in the person's possession relating to any
24
matters connected with the performance of the functions of
25
the Official Receiver or a trustee under this Act.
26
11 At the end of subsection 116(2)
27
Add:
28
; (s) the bankrupt's property that is:
29
Bankruptcy Schedule 1
No. , 2014
Civil Law and Justice Legislation Amendment Bill 2014
5
(i) a support for the bankrupt that was funded under the
1
National Disability Insurance Scheme (as defined in the
2
National Disability Insurance Scheme Act 2013); or
3
(ii) an NDIS amount (as defined in that Act).
4
12 Application of paragraph 116(2)(s) of the Bankruptcy Act
5
1966
6
Paragraph 116(2)(s) of the Bankruptcy Act 1966 applies to bankrupts
7
whose bankruptcies are taken under section 115 of that Act to have
8
commenced on or after the commencement of that paragraph, whether:
9
(a) the property mentioned in that paragraph was acquired
10
before, on or after the commencement of that paragraph; or
11
(b) amounts mentioned in that paragraph were paid before, on or
12
after that commencement.
13
13 Paragraph 265(4)(a)
14
Omit "or removes", substitute ", removes, disposes of or deals with".
15
14 At the end of section 267
16
Add:
17
Presumed maker of declaration in electronic statement
18
(3) If a declaration is contained in a statement that:
19
(a) was received by the Official Receiver electronically; and
20
(b) purported to be made by a particular person;
21
the declaration is presumed to have been made by the person, in
22
the absence of evidence to the contrary.
23
(4) Subsection (3) applies whether the statement was filed,
24
accompanied a declaration or petition or was given to the Official
25
Receiver, as described in subsection (1).
26
(5) Subsection (3) does not affect by implication the operation of a law
27
of the Commonwealth outside this section.
28
Schedule 1 Bankruptcy
6
Civil Law and Justice Legislation Amendment Bill 2014
No. , 2014
15 Application of subsection 267(3) of the Bankruptcy Act
1
1966
2
Subsection 267(3) of the Bankruptcy Act 1966 applies in relation to
3
statements received electronically on or after the commencement of the
4
subsection.
5
16 Section 273
6
Repeal the section, substitute:
7
273 Trial of offences constituted by refusal, failure or omission to act
8
(1) This section applies to an offence against this Act, a physical
9
element of which is:
10
(a) a refusal, failure or omission to act; or
11
(b) a contravention constituted by a refusal, failure or omission
12
to act.
13
(2) A person may be charged with, and convicted of, the offence as if
14
the place of the refusal, failure, omission or contravention were any
15
of the following:
16
(a) the place where the person should have done the act;
17
(b) the person's usual place of residence at the time the act
18
should have been done;
19
(c) the person's place of residence last known to the Official
20
Receiver.
21
(3) Subsection (2) is subject to section 80 of the Constitution.
22
(4) Subsection (2) does not apply to an offence against
23
subsection 264A(1A), 264C(1) or 267F(1).
24
17 Application of section 273 of the Bankruptcy Act 1966
25
Section 273 of the Bankruptcy Act 1966, as amended by this Schedule,
26
applies whether the refusal, failure, omission or contravention occurred
27
before, on or after the commencement of the amendment made by this
28
Schedule affecting that section.
29
International arbitration Schedule 2
No. , 2014
Civil Law and Justice Legislation Amendment Bill 2014
7
Schedule 2
--International arbitration
1
2
International Arbitration Act 1974
3
1 Section 21
4
Before "If", insert "(1)".
5
2 At the end of section 21
6
Add:
7
(2) Subsection (1) applies to an arbitration arising from arbitral
8
proceedings that commence on or after the commencement of this
9
subsection, whether the arbitration agreement giving rise to the
10
arbitration was made before, on or after 6 July 2010.
11
Note:
The provision that is now subsection (1) commenced on 6 July 2010.
12
Schedule 3 Family law
8
Civil Law and Justice Legislation Amendment Bill 2014
No. , 2014
Schedule 3
--Family law
1
2
Family Law Act 1975
3
1 Subsections 10C(2) and 10G(2)
4
Omit ", at least annually,".
5
2 Subsection 65F(4)
6
Repeal the subsection.
7
3 Paragraph 65ZB(3)(b)
8
Before "in accordance with", insert "the child leaves".
9
4 Paragraph 68R(5)(b)
10
Omit "contact", substitute "spending time".
11
5 After paragraph 121(9)(a)
12
Insert:
13
(aa) the communication of any pleading, transcript of evidence or
14
other document to authorities of States and Territories that
15
have responsibilities relating to the welfare of children and
16
are prescribed by the regulations for the purposes of this
17
paragraph; or
18
6 Application of paragraph 121(9)(aa)
19
Paragraph 121(9)(aa) of the Family Law Act 1975 applies to
20
communications made on or after the commencement of that paragraph,
21
whether the communications relate to proceedings occurring before, on
22
or after that commencement.
23
Court security Schedule 4
No. , 2014
Civil Law and Justice Legislation Amendment Bill 2014
9
Schedule 4
--Court security
1
2
Court Security Act 2013
3
1 Subsection 16(4)
4
After "must", insert "take reasonable steps to".
5
2 At the end of section 16
6
Add:
7
Note:
Section 48A also deals with disposal of items given up on request, or
8
seized, under this section.
9
3 Paragraph 27(3)(a)
10
Omit "ensure that the item is given", substitute "take reasonable steps to
11
give the item".
12
4 At the end of section 27
13
Add:
14
Note:
Section 48A also deals with disposal of items seized under this
15
section.
16
5 At the end of subsection 41(1)
17
Add:
18
Note 1:
For interim orders, see section 43.
19
Note 2:
For variation or revocation of an order, see section 45.
20
Note 3:
For appeals from the making of an order, see:
21
(a) Part X of the Family Law Act 1975 if the order was made by a
22
member of the Family Court of Australia or the Family Court of
23
Western Australia; or
24
(b) Division 2 of Part III of the Federal Court of Australia Act 1976
25
if the order was made by a member of the Federal Circuit Court
26
of Australia.
27
6 Section 45
28
After "order may", insert ", on application under section 45A,".
29
7 At the end of section 45
30
Add:
31
Schedule 4 Court security
10
Civil Law and Justice Legislation Amendment Bill 2014
No. , 2014
Note:
For appeals from the variation or revocation of an order, see:
1
(a) Part X of the Family Law Act 1975 if the order was varied or
2
revoked by a member of the Family Court of Australia or the
3
Family Court of Western Australia; or
4
(b) Division 2 of Part III of the Federal Court of Australia Act 1976
5
if the order was varied or revoked by a member of the Federal
6
Circuit Court of Australia.
7
8 After section 45
8
Insert:
9
45A Application for variation or revocation
10
(1) A variation or revocation of a court security order may be made on
11
application by either of the following persons:
12
(a) the person specified in the order;
13
(b) the administrative head of the court to which the order
14
relates.
15
(2) If a person mentioned in subsection (1) applies for variation or
16
revocation of a court security order:
17
(a) he or she must inform the other person mentioned in that
18
subsection of the application; and
19
(b) both those persons are entitled to be heard on the application.
20
9 Application of section 45A of the Court Security Act 2013
21
Section 45A of the Court Security Act 2013 applies to the variation or
22
revocation, on or after the commencement of that section, of orders
23
made before, on or after that commencement.
24
10 After section 48
25
Insert:
26
48A Disposal of dangerous items after 6 months
27
(1) The administrative head of a court on whose court premises a
28
dangerous item was given up on request under section 16 or seized
29
under section 16 or 27 may dispose of the item if:
30
(a) at least 6 months has passed since the item was given up or
31
seized; and
32
Court security Schedule 4
No. , 2014
Civil Law and Justice Legislation Amendment Bill 2014
11
(b) the item has not been returned, or given to a police officer,
1
under that section.
2
(2) If the operation of subsection (1) would result in an acquisition of
3
property (within the meaning of paragraph 51(xxxi) of the
4
Constitution) from a person otherwise than on just terms (within
5
the meaning of that paragraph), the Commonwealth is liable to pay
6
a reasonable amount of compensation to the person.
7
(3) If the Commonwealth and the person do not agree on the amount
8
of the compensation, the person may institute proceedings in a
9
court of competent jurisdiction for the recovery from the
10
Commonwealth of such reasonable amount of compensation as the
11
court determines.
12
11 Application of section 48A of the Court Security Act 2013
13
Section 48A of the Court Security Act 2013 applies to the disposal on or
14
after the commencement of that section of items given up or seized
15
before, on or after that commencement.
16
Family Law Act 1975
17
12 At the end of subsection 94(1)
18
Add:
19
Note:
This subsection applies to appeals from the making, variation and
20
revocation of court security orders under the Court Security Act 2013
21
as described in section 94AB.
22
13 At the end of subsections 94AAA(1A)
23
Add:
24
Note:
This subsection applies to appeals from the making, variation and
25
revocation of court security orders under the Court Security Act 2013
26
as described in section 94AB.
27
14 After section 94AA
28
Insert:
29
94AB Appeals relating to court security orders
30
(1) This section deals with the application of this Part in relation to the
31
making, variation or revocation of a court security order under
32
Schedule 4 Court security
12
Civil Law and Justice Legislation Amendment Bill 2014
No. , 2014
Part 4 of the Court Security Act 2013 by a member (as defined in
1
that Act) of:
2
(a) the Family Court; or
3
(b) the Family Court of Western Australia.
4
(2) This Part applies as if the making, variation or revocation were a
5
decree of the member's court in the exercise of original jurisdiction
6
under this Act.
7
Note:
As a result, an appeal from the making, variation or revocation lies
8
under subsection 94(1), if the member is a member of the Family
9
Court or a member of the Family Court of Western Australia other
10
than a Family Law Magistrate of Western Australia.
11
(3) However, if the member is a member of the Family Court of
12
Western Australia because he or she is a Family Law Magistrate of
13
Western Australia, this Part applies as if:
14
(a) the making, variation or revocation were a decree of the
15
Magistrates Court of Western Australia constituted by a
16
Family Law Magistrate of Western Australia exercising
17
original jurisdiction under this Act; and
18
(b) proceedings for the making, variation or revocation were
19
proceedings in the Magistrates Court of Western Australia
20
constituted by a Family Law Magistrate of Western
21
Australia.
22
Note:
As a result, an appeal from the making, variation or revocation by the
23
member lies under subsection 94AAA(1A).
24
15 Application of section 94AB of the Family Law Act 1975
25
Section 94AB of the Family Law Act 1975 applies to appeals instituted
26
on or after the commencement of that section from the making,
27
variation and revocation of court security orders before, on or after that
28
commencement.
29
Evidence Schedule 5
Privilege in respect of self-incrimination Part 1
No. , 2014
Civil Law and Justice Legislation Amendment Bill 2014
13
Schedule 5
--Evidence
1
Part 1
--Privilege in respect of self-incrimination
2
Evidence Act 1995
3
1 Subsection 128(3)
4
Omit "If", substitute "Subject to subsection (4), if".
5
2 Subsection 128(3)
6
Before "is to inform", insert "is not to require the witness to give the
7
evidence, and".
8
3 At the end of section 128A
9
Add:
10
(11) If a person has been given a certificate under a prescribed State or
11
Territory provision in respect of information of a kind referred to
12
in paragraph (6)(a), the certificate has the same effect, in a
13
proceeding to which this subsection applies, as if it had been given
14
under this section.
15
(12) For the purposes of subsection (11), a prescribed State or Territory
16
provision is a provision of a law of a State or Territory declared by
17
the regulations to be a prescribed State or Territory provision for
18
the purposes of that subsection.
19
(13) Subsection (11) applies to:
20
(a) a proceeding in relation to which this Act applies because of
21
section 4; and
22
(b) a proceeding for an offence against a law of the
23
Commonwealth or for the recovery of a civil penalty under a
24
law of the Commonwealth, other than a proceeding referred
25
to in paragraph (a) of this subsection.
26
Note 1:
Bodies corporate cannot claim this privilege: see section 187.
27
Note 2:
Clause 3 of Part 2 of the Dictionary sets out what is a civil penalty.
28
Schedule 5 Evidence
Part 2 Application to the Australian Capital Territory
14
Civil Law and Justice Legislation Amendment Bill 2014
No. , 2014
Part 2
--Application to the Australian Capital Territory
1
Evidence Act 1995
2
4 Chapter 1 (introductory note)
3
Omit "and ACT courts".
4
5 Subsection 4(1)
5
Omit "or an ACT court".
6
6 Subsection 4(1) (note 2)
7
Repeal the note, substitute:
8
Note 2:
Federal court is defined in the Dictionary. The definition includes
9
persons or bodies required to apply the laws of evidence.
10
7 Subsection 4(1) (note 3)
11
Omit "or ACT courts".
12
8 Paragraph 4(5)(b)
13
After "a court of", insert "the Australian Capital Territory,".
14
9 Paragraphs 4(5)(c) and (d)
15
Repeal the paragraphs.
16
10 Paragraph 4(5)(e)
17
Omit "on or after that day--".
18
11 Subsection 4(6) (not including the note)
19
Repeal the subsection.
20
12 Subsections 8(4) to (6)
21
Repeal the subsections.
22
13 Section 19
23
Repeal the section.
24
Evidence Schedule 5
Application to the Australian Capital Territory Part 2
No. , 2014
Civil Law and Justice Legislation Amendment Bill 2014
15
14 Subsection 128(15) (not including the notes)
1
Repeal the subsection.
2
15 Subsection 128A(1) (definition of disclosure order)
3
Omit "or an ACT court".
4
16 Section 131B
5
Omit "or an ACT court".
6
17 Subsection 182(2)
7
Omit "or (until the day fixed by Proclamation under subsection 4(6)) an
8
ACT court".
9
18 Subsection 187(1)
10
Omit "or the Australian Capital Territory".
11
19 Subsection 187(1)
12
Omit "or an ACT court".
13
20 Part 1 of the Dictionary (definition of ACT court)
14
Repeal the definition.
15
Schedule 5 Evidence
Part 3 Differences from Evidence Acts of other jurisdictions
16
Civil Law and Justice Legislation Amendment Bill 2014
No. , 2014
Part 3
--Differences from Evidence Acts of other
1
jurisdictions
2
Evidence Act 1995
3
21 Chapter 1 (introductory note)
4
Omit all the words after "Related legislation", substitute:
5
This Act is in most respects uniform with the following State and Territory Acts:
6
(a) the Evidence Act 1995 (NSW);
7
(b) the Evidence Act 2001 (Tas.);
8
(c) the Evidence Act 2008 (Vic.);
9
(d) the Evidence Act 2011 (ACT);
10
(e) the Evidence (National Uniform Legislation) Act 2011 (NT).
11
While these Acts are in most respects identical to this Act, there are differences.
12
The explanatory memorandum to the Civil Law and Justice Legislation
13
Amendment Bill 2014 includes a table setting out the differences as at 8 July
14
2014. An updated version of the table is maintained by the Attorney-General's
15
Department on its website (http://www.ag.gov.au).
16
22 Subsection 3(3) (note)
17
Repeal the note.
18
23 Subsection 4(1) (note 1)
19
Repeal the note.
20
24 Subsection 4(6) (note)
21
Repeal the note.
22
25 Section 5 (note 1)
23
Omit "Note 1", substitute "Note".
24
26 Section 5 (note 2)
25
Repeal the note.
26
27 Section 6 (note)
27
Repeal the note.
28
Evidence Schedule 5
Differences from Evidence Acts of other jurisdictions Part 3
No. , 2014
Civil Law and Justice Legislation Amendment Bill 2014
17
28 Section 7 (note)
1
Repeal the note.
2
29 Subsection 8(6) (note)
3
Repeal the note.
4
30 Section 8A (note 1)
5
Omit "Note 1", substitute "Note".
6
31 Section 8A (note 2)
7
Repeal the note.
8
32 Subsection 9(3) (note)
9
Repeal the note.
10
33 Subsection 68(4) (note)
11
Repeal the note.
12
34 Subsection 70(2) (note 1)
13
Repeal the note.
14
35 Subsection 70(2) (note 2)
15
Omit "Note 2", substitute "Note".
16
36 Subsection 128(7) (note)
17
Repeal the note.
18
37 Subsection 128(15) (note 3)
19
Repeal the note.
20
38 Subsection 129(5) (note)
21
Repeal the note.
22
39 Subsection 150(1) (note)
23
Repeal the note.
24
40 Subsection 151(2) (note)
25
Repeal the note.
26
Schedule 5 Evidence
Part 3 Differences from Evidence Acts of other jurisdictions
18
Civil Law and Justice Legislation Amendment Bill 2014
No. , 2014
41 Subsection 155(2) (note 1)
1
Repeal the note.
2
42 Subsection 155(2) (note 2)
3
Omit "Note 2", substitute "Note".
4
43 Subsection 155A(2) (note 1)
5
Repeal the note.
6
44 Subsection 155A(2) (note 2)
7
Omit "Note 2", substitute "Note".
8
45 Subsection 163(2) (note 1)
9
Repeal the note.
10
46 Subsection 163(2) (note 2)
11
Omit "Note 2", substitute "Note".
12
47 Subsection 170(1) (note)
13
Repeal the note.
14
48 Subsection 171(3) (note)
15
Repeal the note.
16
49 Subsection 182(5) (note 1)
17
Repeal the note.
18
50 Subsection 182(5) (note 2)
19
Omit "Note 2", substitute "Note".
20
51 Section 185 (note)
21
Repeal the note.
22
52 Subsection 186(2) (note)
23
Repeal the note.
24
53 Section 194
25
Repeal the section.
26
Evidence Schedule 5
Differences from Evidence Acts of other jurisdictions Part 3
No. , 2014
Civil Law and Justice Legislation Amendment Bill 2014
19
54 Subsection 195(2) (note 1)
1
Omit "Note 1", substitute "Note".
2
55 Subsection 195(2) (note 2)
3
Repeal the note.
4
56 Section 196
5
Repeal the section.
6
57 Part 1 of the Dictionary (note at the end of the definition of
7
confidential document)
8
Repeal the note.
9
58 Part 1 of the Dictionary (note at the end of the definition of
10
federal court)
11
Repeal the note.
12
59 Part 1 of the Dictionary (notes 1 and 2 at the end of the
13
definition of government or official gazette)
14
Repeal the notes.
15
Schedule 5 Evidence
Part 4 Other amendments
20
Civil Law and Justice Legislation Amendment Bill 2014
No. , 2014
Part 4
--Other amendments
1
Evidence Act 1995
2
60 Section 31 (heading)
3
Repeal the heading, substitute:
4
31 Witnesses who cannot hear adequately or speak adequately
5
61 Paragraph 1(1)(d) of Part 2 of the Dictionary
6
After "person", insert "or body".
7
62 Clause 4 of Part 2 of the Dictionary
8
Repeal the clause, substitute:
9
4 Unavailability of persons
10
(1) For the purposes of this Act, a person is taken not to be available to
11
give evidence about a fact if:
12
(a)
the person is dead; or
13
(b) the person is, for any reason other than the application of
14
section 16 (Competence and compellability: judges and
15
jurors), not competent to give the evidence; or
16
(c) the person is mentally or physically unable to give the
17
evidence and it is not reasonably practicable to overcome that
18
inability; or
19
(d) it would be unlawful for the person to give the evidence; or
20
(e) a provision of this Act prohibits the evidence being given; or
21
(f) all reasonable steps have been taken, by the party seeking to
22
prove the person is not available, to find the person or secure
23
his or her attendance, but without success; or
24
(g) all reasonable steps have been taken, by the party seeking to
25
prove the person is not available, to compel the person to
26
give the evidence, but without success.
27
(2) In all other cases the person is taken to be available to give
28
evidence about the fact.
29
Evidence Schedule 5
Application of amendments Part 5
No. , 2014
Civil Law and Justice Legislation Amendment Bill 2014
21
Part 5
--Application of amendments
1
63 Application of amendments
2
(1)
The amendments made by this Schedule do not apply in relation to
3
proceedings the hearing of which began before the commencement of
4
this Schedule.
5
(2)
The Evidence Act 1995, as in force immediately before that
6
commencement, continues to apply in relation to proceedings the
7
hearing of which began before that commencement.
8
Schedule 6 Protection of movable cultural heritage
22
Civil Law and Justice Legislation Amendment Bill 2014
No. , 2014
Schedule 6
--Protection of movable cultural
1
heritage
2
3
Protection of Movable Cultural Heritage Act 1986
4
1 Subsection 17(5)
5
Repeal the subsection.
6
National Library material Schedule 7
No. , 2014
Civil Law and Justice Legislation Amendment Bill 2014
23
Schedule 7
--National Library material
1
2
Copyright Act 1968
3
1 Subsection 10(1)
4
Insert:
5
available online, in relation to National Library material, has the
6
meaning given by section 195CF.
7
delivery period has the meaning given by subsection 195CD(2).
8
National Library material has the meaning given by
9
section 195CE.
10
National Library Minister means the Minister administering the
11
National Library Act 1960.
12
2 Subsection 10(1) (definition of the National Librarian)
13
Repeal the definition.
14
3 Before section 195A
15
Insert:
16
Division 1--Interpretation
17
4 Before section 195B
18
Insert:
19
Division 2--Review
20
5 After section 195B
21
Insert:
22
Schedule 7 National Library material
24
Civil Law and Justice Legislation Amendment Bill 2014
No. , 2014
Division 3--National Library of Australia
1
195CA Simplified outline
2
Persons publishing certain literary, dramatic, musical or artistic
3
works in Australia must deliver copies of the works to the National
4
Library. The National Library may also request the delivery of
5
works that are available online.
6
195CB Copy of certain material to be delivered to the Library
7
Material published but not available online
8
(1) A person commits an offence if:
9
(a) the person publishes National Library material in Australia
10
on a particular day, but not in such a way that makes the
11
material available online; and
12
(b) the person is not requested under section 195CC, during the
13
period of 1 month starting on that day, to cause a copy of the
14
material to be delivered under section 195CD; and
15
(c) the person contravenes section 195CD.
16
Penalty: 10 penalty units.
17
Material available online
18
(2) A person commits an offence if:
19
(a) the person publishes National Library material; and
20
(b) the material is available online; and
21
(c) the person is requested under section 195CC to cause a copy
22
of the material to be delivered under section 195CD; and
23
(d) the person contravenes section 195CD.
24
Penalty: 10 penalty units.
25
Offences of strict liability
26
(3) Subsections (1) and (2) are offences of strict liability.
27
Note:
For strict liability, see section 6.1 of the Criminal Code.
28
National Library material Schedule 7
No. , 2014
Civil Law and Justice Legislation Amendment Bill 2014
25
Not continuing offences
1
(4) Subsection 4K(2) of the Crimes Act 1914 (about continuing
2
offences) does not apply in relation to an offence against
3
subsection (1) or (2).
4
195CC Library may request a copy of material available online
5
(1) The Director-General of the National Library may request, in
6
writing, a person to cause a copy of National Library material to be
7
delivered under section 195CD if:
8
(a) the person publishes the material; and
9
(b) the material is available online; and
10
(c) the Director-General considers that a copy of the material
11
should be included in the national collection of library
12
material (see section 6 of the National Library Act 1960).
13
Note:
The national collection includes a comprehensive collection of library
14
material relating to Australia and the Australian people.
15
(2) The request may be made any time after the person publishes the
16
material.
17
(3) For the purposes of paragraph 9(2)(d) of the Electronic
18
Transactions Act 1999, one way of consenting to a request being
19
made by way of electronic communication is having the ability to
20
automatically receive user agent requests.
21
Example: The Director-General could use a web harvester to make requests in
22
the form of user agent requests.
23
195CD Delivering material to the Library
24
(1) A person contravenes this section unless the person causes to be
25
delivered to the National Library, before the end of the delivery
26
period for the National Library material, a copy of the material
27
that:
28
(a) is a copy of the whole of the material (including any
29
illustrations, drawings, engravings, photographs and
30
audio-visual elements); and
31
(b) if the copy was requested under section 195CC--is in the
32
electronic form in which the material was available online;
33
and
34
Schedule 7 National Library material
26
Civil Law and Justice Legislation Amendment Bill 2014
No. , 2014
(c) if the copy is in an electronic form:
1
(i) is free from any technological protection measure; and
2
(ii) is accompanied by any software or additional
3
information necessary for the National Library to access
4
the material from the copy; and
5
(d) if the copy is in hardcopy form:
6
(i) is finished and coloured, and bound, sewed, stitched or
7
otherwise fastened together, in the same manner as the
8
best copies of the material are supplied to the public;
9
and
10
(ii) is on the best paper on which the material is printed; and
11
(e) is delivered at the person's own expense, unless the copy was
12
requested under section 195CC and the request stated
13
otherwise; and
14
(f) meets the requirements (if any) prescribed by the National
15
Library Minister for the purposes of this paragraph.
16
(2) The delivery period, for National Library material, starts on:
17
(a) for material published in a way covered by
18
paragraph 195CB(1)(a)--the day it was so published; or
19
(b) for material requested under section 195CC--the day the
20
request was made;
21
and ends 1 month later or on a later day allowed by the
22
Director-General of the National Library.
23
Note:
This section could apply twice, with separate delivery periods, if
24
material published in Australia but not available online later became
25
available online and was requested under section 195CC more than 1
26
month after it was published.
27
195CE Meaning of National Library material
28
A literary, dramatic, musical or artistic work, or an edition of such
29
a work, (whether in an electronic form or otherwise) is National
30
Library material if:
31
(a) the work or edition is:
32
(i) a website, web page, web file, book, periodical,
33
newspaper, pamphlet, sheet of music, map, plan, chart
34
or table; or
35
(ii) prescribed by the National Library Minister for the
36
purposes of this subparagraph; and
37
National Library material Schedule 7
No. , 2014
Civil Law and Justice Legislation Amendment Bill 2014
27
(b) copyright subsists in the work or edition under this Act; and
1
(c) the work or edition is not primarily audio-visual; and
2
(d) in the case of an edition:
3
(i) the edition contains additions or alterations in the text or
4
other reading matter, illustrations, drawings, engravings,
5
photographs or audio-visual elements; and
6
(ii) the content of at least one of those additions or
7
alterations was not contained in any earlier edition; and
8
(e) the work or edition is not prescribed by the National Library
9
Minister for the purposes of this paragraph.
10
Note:
The same work in hardcopy form and an electronic form is the same
11
National Library material.
12
195CF Meaning of available online
13
National Library material is available online if it is communicated:
14
(a) on the internet; or
15
(b) in an electronic form prescribed by the National Library
16
Minister for the purposes of this paragraph.
17
195CG Infringement notices
18
(1) The National Library Minister may prescribe a scheme enabling a
19
person who is alleged to have committed an offence against
20
subsection 195CB(1) or (2) to pay a penalty to the Commonwealth
21
as an alternative to prosecution.
22
(2) The penalty must equal one-fifth of the maximum fine that a court
23
could impose on the person as a penalty for that offence.
24
195CH Relationship with State and Territory laws
25
This Division is not intended to exclude or limit the operation of
26
any law of a State or Territory (whether made before or after the
27
commencement of this Division) that makes provision for or in
28
relation to the delivery to a specified public or other library in or of
29
the State or Territory of copies of National Library material
30
published in the State or Territory.
31
Schedule 7 National Library material
28
Civil Law and Justice Legislation Amendment Bill 2014
No. , 2014
195CI Delegation
1
(1) The Director-General of the National Library may, in writing,
2
delegate the Director-General's powers under this Division to a
3
member of the staff of the National Library who is an SES
4
employee or acting SES employee.
5
Note:
The relevant powers are in section 195CC (about requesting copies of
6
material available online), and subsection 195CD(2) (about allowing
7
further time for delivery).
8
(2) In exercising powers under a delegation, the delegate must comply
9
with any written directions of the Director-General.
10
195CJ Legislative instruments
11
The National Library Minister may, by legislative instrument,
12
prescribe matters required or permitted by this Division to be
13
prescribed by that Minister.
14
Division 4--Other matters
15
6 Sections 201 and 241
16
Repeal the sections.
17
7 Application of amendments
18
The amendments made by this Schedule apply in relation to National
19
Library material published by a person on or after the commencement
20
of this item.
21